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In a rare move, the Second Circuit (Jacobs, Pooler, Hall) overturned Armani Cummings’s convictions for murder, conspiracy, and multiple drugs and firearms offenses. The Court reversed based on violation of the hearsay rules—not a common basis for reversal, but on the facts here, the Court recognized the powerful nature of the evidence that was admitted in violation of the rules of evidence. Any reversal of a criminal conviction based on an evidence error—particularly one involving crimes as serious as those alleged here—merits close consideration.

Background

The charges against Cummings arose in connection with his operation of a crack cocaine gang in the Bronx between 2006 and 2012. Competition between Cummings and a rival drug-trafficking crew resulted in the deaths of many members of the respective gangs. In 2010, Cummings allegedly shot and killed Laquan Jones—a former associate of Cummings’s who had joined the rival organization—and Carl Copeland, a rival gang member who was tied to the murder of one of Cummings’s close friends.

In 2012, the United States Attorney’s Office indicted Cummings and thirty-four co-defendants on charges of knowingly conspiring to violate federal narcotics laws and for related federal firearm violations. Prosecutors later filed a superseding indictment charging Cummings, among other things, with the murders of Jones and Copeland. Cummings pled not guilty to all counts.

Primarily at issue in Cummings’s case was the admission of testimony from a cooperating witness, Jim Volcy. Volcy was a former drug dealer in the Bronx, who was also housed in the same prison as Cummings. Volcy claimed to have observed Cummings’s participation in Copeland’s death, and alleged that Cummings threatened to kill Volcy in prison.

Prior to trial, the government filed a motion in limine, arguing that Volcy should be permitted to testify that Cummings threatened him. Prosecutors contended that this “death-threat” testimony was admissible under Federal Rule of Evidence 404(b) as “other-bad-acts” evidence demonstrating Cummings’s consciousness of guilt. Cummings’s counsel opposed the government’s motion on the grounds that the death-threat evidence should be excluded under Rule 403, as the risk of unfair prejudice to Cummings outweighed the evidence’s probative value. The district court ruled that Volcy could testify about Cummings’s alleged threat, subject to “an appropriate limiting instruction” directing the jury to consider the threats only as evidence of Cummings’s consciousness of guilt. Slip Op. at 11.

At trial, the government introduced 911 calls and other crime-scene, ballistic, and medical evidence, as well as testimony from several former members of Cummings’s and the rival drug-trafficking organizations. The testimonial witnesses from both gangs stated that they observed Cummings sell crack, commit violence against members of the rival gang, and confess to murdering Jones and Copeland. The government also called Volcy, who testified as follows:

GOVERNMENT: [At the detention facility], did you see [Cummings]?

VOLCY: Yes

GOVERNMENT: Did he say anything to you?

VOLCY: Not directly.

GOVERNMENT: Did he say anything to you indirectly?

DEFENSE: Objection

THE COURT: Overruled

VOLCY: He said stuff to people around me.

GOVERNMENT: But you were present?

DEFENSE: Objection. Leading.

THE COURT: Overruled.

GOVERNMENT: What did he say?

VOLCY: He just called me rat bastard and just called me names – things like that.

GOVERNMENT: After he called you names, what if anything did he say to you or do to you?

VOLCY: He didn’t do anything to me. He couldn’t reach me, but you know, he made threats, things like that.

GOVERNMENT: What were the threats that he made?

VOLCY: He would shoot me in the face.

Slip Op. at 14 (emphasis added). Cummings’s attorney did not renew the request for a limiting instruction to the jury at this time, nor during the charge conference at the end of trial. In fact, counsel suggested that only a gun stipulation might warrant a proposed jury instruction about evidence admitted under Rule 404(b). Id. Although the government later reminded the Court about the threat testimony by Volcy, the district court did not deliver a 404(b) instruction to the jury.

The jury returned a guilty verdict on all counts. The district court sentenced Cummings to a 75-year term of imprisonment.

The Appeal

On appeal, Cummings challenged the district court’s admission of Volcy’s testimony on the grounds that it constituted hearsay under Federal Rule of Evidence 802 and was not subject to an enumerated exception. The Second Circuit held: (1) that Cummings had not waived his hearsay claim, notwithstanding counsel’s failure to contemporaneously object at trial; (2) the district court’s failure to exclude Volcy’s evidence as hearsay was in error; and (3) that error was not harmless.

Waiver

Federal Rule of Evidence 103 requires parties to timely and specifically object to an evidentiary ruling. Otherwise, the court reviews only for plain error. In this case, the Second Circuit explained that “[t]he purpose of requiring a timely objection is to identify the disputed issue and give the trial judge a chance to correct errors which might otherwise necessitate a new trial.” Slip Op. at 18 (quoting in parenthetical Robinson v. Shapiro, 646 F.2d 734, 742 (2d Cir. 1981)).

The Court observed that during the government’s questioning of Volcy, defense counsel had objected when Volcy testified that Cummings had “not directly” spoken to him. It does not appear to have been a speaking objection, but from the context, the Court concluded that this objection by Cummings’s attorney was “timely” and “sufficient to identify the hearsay issue” for the district court, and thus preserved Cummings’s objection to the court’s admission of Volcy’s hearsay testimony for appeal.

Hearsay

Hearsay is any out-of-court statement “offer[ed] as evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). The Federal Rules of Evidence broadly proscribe the admission of hearsay evidence, subject to limited exceptions. See Fed. R. Evid. 802. Courts of appeals review a district court’s evidentiary rulings only for an abuse of discretion, and also must construe the record in the light most favorable to the government. See Slip Op. at 21.

In this case, the Second Circuit found that Volcy’s testimony could only be understood to mean that he heard the death threat second hand, from someone other than Cummings. Accordingly, the court explained that Volcy’s testimony presented a “double hearsay” problem. And unless both out-of-court statements fall into an exception to Rule 802’s general prohibition on hearsay, they should be excluded.

Breaking up Volcy’s testimony into its assumed constituent parts, the court concluded that the statement from Cummings to an unknown third-party declarant that he was “going to shoot Volcy in the face” could properly be admitted because it was not hearsay: for one, it was not offered for the truth of the matter asserted, but rather as evidence of Cummings’ consciousness of guilt. Further, statements by an opposing party offered against that party are not hearsay. Fed. R. Evid. 801(d)(2)(A).

But the court found that the second statement—from the third party to Volcy that he heard Cummings say, “I am going to shoot Volcy in the face”—was hearsay not subject to any exception. It was hearsay to the extent that it was offered for the truth of the matter asserted, i.e., that the third party actually heard Cummings’s threat, and it did not satisfy any of the enumerated hearsay exceptions. For this reason, the Second Circuit held that the district court had abused its discretion in admitting Volcy’s testimony.

Prejudice

Lastly, courts are constrained to disregard any error that does not affect substantial rights. Fed. R. Crim P. 52(a). Therefore, erroneous evidentiary rulings require the reversal of a conviction only if the reviewing court concludes that the error was not harmless. “An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.” Slip Op. at 26 (quoting United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009)).

Although the Second Circuit conceded that the government presented ample evidence to support Cummings’s convictions even absent the alleged threat against Volcy, the court could not conclude that the district court’s erroneous admission of hearsay without giving a limiting instruction was harmless. The court noted that the test for harmlessness is not whether, “disregarding the erroneously introduced evidence, there was other evidence . . . independently sufficient to establish [the defendant’s] guilt.” Slip Op. at 27 (quoting United States v. Check, 582 F.2d 668, 684 (2d Cir. 1978). Instead, the court must consider the error in light of the record as a whole.

Second Circuit precedent commands that “[i]t is hard to deem harmless the erroneous admission of death threat evidence,” and, in the context of Cummings’s case, the court found that the admission of Volcy’s testimony created an undue risk that the jury construed the threat as evidence of Cummings’s “murderous propensity.” Slip Op. at 29. The court rebuked the government for implying as much in its closing argument. Id. at 34. The absence of the third-party declarant that had relayed Cummings’s threat to Volcy meant that the error could not be mitigated by effective cross examination, and although Cummings’s attorney did not request a limiting instruction, the Second Circuit nevertheless opined that the district court’s failure to give one “loom[ed] large in considering the potential unfair prejudice Cummings suffered.” Of particular note, the Court found that the “toxic” testimony by Volcy had resulted in prejudice to Cummings even though the jury heard evidence that Cummings had confessed to the charged murders, and the hearsay evidence was only a minor feature of the three-week trial. Thus, on balance, the Second Circuit was “unable to conclude with fair assurance that the evidence did not substantially influence the jury.” Id. at 40. Therefore, it vacated Cummings’s conviction and remanded his case to the district court for a new trial.

Commentary

This was no ordinary hearsay issue when it came to the court’s assessment of prejudice. To be sure, the Court explained that it was not reversing based on a finding that the district court incorrectly balanced the prejudice and probative value of the death threat evidence. This would have been a heavy lift, given that Rule 403 rulings are discretionary, made by a district court without much oversight; Rule 403 errors rarely gives rise to the reversal of a conviction. However, the Court explained that its prejudice analysis was informed by the Circuit’s long-standing view that “the potential prejudice for death threats may be great.” Slip Op. at 29 (quoting United States v. Qamar, 671 F.2d 732, 736 (2d Cir. 1982)). The Court also drew on analysis from decisions applying Rule 404(b), explaining that the death threat evidence was likely taken by the jury “as evidence of Cummings’s murderous propensity.”

The Court also did not seem to get bogged down in hair-splitting determinations about which errors were preserved and which were not. For example, the Court relied in part on the absence of any limiting instruction about how the jury should use the death threat evidence, even though the defense counsel omitted to make a request for such an instruction. Nor does it appear that the defense objected to the government’s incorrect use of the death threat evidence in summation, and yet the government’s summation also played a part in leading the panel to reverse. So long as the defense objected to the evidence on some ground, the Court considered the entire issue under the harmless error standard rather than the plain error standard. Counsel in the future may draw upon these aspects of the analysis in Cummings when arguing that harmless error, not plain error, should be the standard of review.

The other aspect of the Court’s prejudice analysis that bears close attention is that the evidence at trial—even without the death threat evidence—appears to have been quite strong. Still, the Court “consider[ed] the centrality of that [inadmissible hearsay] evidence at trial and the number and frequency of references to the wrongly admitted evidence.” Slip op. at 38-39. The Court recognized that the trial would have been a very different one if the death threat evidence had not been admitted, and therefore reversed even though the defendant confessed and was implicated by other witnesses and evidence. Given how few cases are reversed in these circumstances, we can expect this decision to be cited by defendants early and often.